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Ortiz v. Colvin

United States District Court, D. Massachusetts

July 30, 2015

MARIA ORTIZ, Plaintiff,




Maria M. Ortiz instituted this action under 42 U.S.C. § 405(g) seeking review of the decision of the Security Administration denying her social security disability benefits. She contends that the Commissioner erred by undue reliance on state agency reports as to her residual functional capacity and by failing adequately to consider subjective evidence of pain.

A. Medical Chronology

Ms. Ortiz was born on September 22, 1966. At the time she applied for disability benefits, she was 43 years old. An Administrative Law Judge of the Social Security Administration determined that the date Ms. Ortiz was last insured was December 31, 2014. She was consequently required to show an existing disability on or before that date in order to receive social security disability benefits.

Ms. Ortiz sought medical attention beginning in 2009 due to rotator cuff surgery on the left arm, bicep surgery on the left arm, and tendonitis on the right arm. On December 21, 2009, she visited her physician Dr. Christiano with complaints of pain in her left leg after slipping on ice outside her workplace. An x-ray showed no signs of fracture or arthritis and the doctor assessed the origin of her pain to be hamstring strain. He recommended physical therapy and a two-week absence from work.

Between January 2010 and March 2012, Ms. Ortiz visited a number of doctors and hospitals complaining of a variety of ailments. On January 20, 2010, Ms. Ortiz visited the emergency department due to right elbow pain, which the doctor diagnosed as tendonitis. One week later Ms. Ortiz received a cortisone injection to her right elbow after injuring her elbow while working at Dunkin Donuts. On February 22, 2010, she saw Dr. Christiano because of a pain in her left shoulder and right arm.

On March 17, 2010, Dr. Laguarda diagnosed Ms. Ortiz with severe decompensated of diabetes (decompensated diabetes mellitus is a disease in which blood sugar levels cannot be corrected by means of drugs, resulting in development of severe damage to many of the patient's systems and internal organs) after she had been found unresponsive in her apartment and brought to the hospital. At a follow-up visit on April 2, 2010, the doctor noted that Ms. Ortiz was correcting her diabetes with insulin. One week later Ms. Ortiz saw Dr. Rapa who noted that she had responded very well to the intensive care unit insulin, that her blood sugar levels were controlled, that she was "not disabled" and that she was "able to work without restrictions".

On April 13, 2010, Ms. Ortiz visited Dr. Christiano again, complaining of pain in both shoulders. On April 21, she checked into the emergency department because of an abscess on her thigh and gout in her foot.

One week later, on April 27, 2010, Ms. Ortiz saw Dr. Hentoff who noted that she had developed signs of depression due to the fact that the restaurant where she had been working had been closed and she had been unable to find another job. During the visit she acknowledged increased alcohol use after the loss of her job, but said that she had maintained sobriety for the previous 2-1/2 months. She also described her daily routine activities to Dr. Hentoff: getting up between 6:30 and 7:00 am, having breakfast and showering independently, going for a walk, searching for jobs or going to doctor's appointments, having lunch, followed by another walk in the afternoon, resting and going to bed at around 9:00 pm. The doctor diagnosed Ms. Ortiz with major depressive disorder and appraised her Global Assessment of Functioning score at 55, (a scale from 0 to 100 where higher scores indicate greater levels of functioning), which lies in the moderate range.

The day after her visit to Dr. Hentoff, Ms. Ortiz went to the hospital and was treated for nausea and vomiting, and she returned the next morning at 3:00 a.m. because of pain in her chest. On May 11, 2010, Ms. Ortiz visited Dr. Gottlieb to begin treatment for diabetes. When she went to see Dr. Rapa one week later she did not have any symptoms.

On May 23, 2010, Ms. Ortiz visited the emergency department because of pain in her left foot, but the provider noted that the pain was of unclear etiology and that she exhibited no signs of swelling or warmth in her left foot, whether through visual examination or x-ray. When she developed vomiting, nausea, and a poor appetite a few days later, a colonoscopy revealed that Ms. Ortiz suffered from gastritis.

On June 24, 2010, Ms. Ortiz saw Dr. Gottlieb, who noted that she continued to experience pain in her right shoulder and that her memory was not as sharp as it had been before. In August 2010, Dr. Rapa opined that Ms. Ortiz was doing well and that she had good control of her diabetes. Meanwhile, Dr. Christiano found mild degenerative changes in her right elbow and no abnormal findings as to possible fractures or dislocations in her right shoulder when he examined her. Images of Ms. Ortiz's gastrointestinal tract revealed that she still suffered from gastritis in September 2010, four months after the condition had first been diagnosed. On April 14, 2011, Ms. Ortiz was admitted to the hospital for diarrhea, but the report left the question of etiology open, although it also diagnosed macrocytic anemia (a condition where the red blood cells are too large and too few, and cannot carry enough oxygen, thus making the person feel tired much more easily) in the setting of alcohol use and acute renal failure. The report also noted that the two colonoscopies Ms. Ortiz had undergone had both revealed colitis and a persisting moderate gastritis, a diagnosis that was affirmed when she was admitted to the hospital for abdominal pain on May 6, 2011. The report for the latter date notes that Ms. Ortiz appeared obese, and that she denied using alcohol. She was discharged three days later with instructions to "[s]top drinking alcohol" and to "[a]void dairy products while having diarrhea".

On September 27, 2011, Ms. Ortiz saw Dr. Gottlieb to complain of discomfort in her left eye and chest pressure while walking, and the doctor found her diarrhea to be well-controlled through the medication she had received.

Gallbladder problems were first discovered when Ms. Ortiz visited the hospital with pneumonia and abdominal pain on December 9, 2011. A few days later providers placed a stent in her bile duct to address a potential stone, and on December 28, 2011, Ms. Ortiz visited the emergency room due to abdominal pain resulting from tiny gravel in the gallbladder and a thickening of the gallbladder wall.

On January 8, 2012, Ms. Ortiz went to the emergency room due to a numbness in her hands. On January 22, 2012, she was hospitalized due to pain in her arms and legs, for which providers noted that she had a history of pancreatitis, attributable to alcohol abuse. When she returned with severe dehydration the day after her release Ms. Ortiz admitted to having had one shot of hard liquor before going to bed, but maintained that she had been largely sober for the previous two months.

On February 21, 2012, Ms. Ortiz was again admitted to the hospital with gastrointestinal complaints, for which providers could determine no clear etiology, apart from noting a possible cirrhosis connection. On March 20, 2012, Ms. Ortiz saw Dr. Gottlieb and claimed that she had been diagnosed with liver cirrhosis. On subsequent examination, Dr. Gottlieb only found a slight tenderness on her liver edge.

State agency reports were divided into two parts; an assessment of Physical Residual Functional Capacity and a Psychiatric Review Technique. In June 2010, Dr. Poirier noted on the Physical Residual Functional Capacity Form that Ms. Ortiz had rotator cuff repair, gout and diabetes. He opined that Ms. Ortiz could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk for a total of about 6 hours in an 8-hour workday, sit for a total of about 6 hours in an 8-hour workday and push and/or pull with no limitations other than what was shown for lift and/or carry. With respect to postural limitations, Dr. Poirier found that Ms. Ortiz could climb ramps and stairs frequently, climb ladders, ropes and scaffolds only occasionally, balance, stoop, kneel and crouch frequently, but crawl only occasionally. The assessment was affirmed by Dr. Faigel.

Dr. Cox, the doctor responsible for the Psychiatric Review Technique, found that Ms. Ortiz did not suffer from a severe mental health impairment in June 2010. Dr. Garrison affirmed this assessment. The state agency reports classified Ms. Ortiz as able to perform light work.

B. Procedural History

Ms. Ortiz filed applications for disability benefits in March 2010, alleging an inability to work since December 21, 2009. The Social Security Administration denied the applications first on June 7, 2010, and on reconsideration on October 25, 2010. Following Ms. Ortiz's written request, a hearing was held before an ALJ on April 10, 2012. In addition to Ms. Ortiz, a vocational witness, James Cohen, also testified at the hearing. Mr. Cohen, while opining that Ms. Ortiz could perform sedentary work, conceded that she could not do so if medical difficulties resulted in frequent absenteeism.

On May 25, 2012, the ALJ found that Ms. Ortiz did not have a disability that met the required standards and was thus not entitled to disability benefits. The ALJ found specifically that Ms. Ortiz had insulin dependent diabetes mellitus, degenerative joint disease of the upper extremities, colitis, gallbladder disease, and depression. The ALJ also found that Ms. Ortiz, although treated for degenerative changes in the shoulders and right elbow, remained capable of performing fine and gross movements. He ultimately found that she was capable of sedentary work for which jobs exist in significant numbers.

The Appeals Council denied Ms. Ortiz's request for review on September 6, 2013, making the ALJ's decision the final decision of the Commissioner in this case. On April 4, 2014, Ms. Ortiz filed this action appealing that decision.

C. Standard of Review

1. The administrative evaluation protocol

Social Security regulations provide a five-step sequential evaluation to determine whether an individual is entitled to SSDI and SSI benefits. 20 C.F.R. § 404.1520; see Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). Under 20 C.F.R. § 404.1520, if at any step there is a clear determination that a claimant is disabled or not disabled, the evaluation process can be concluded. If, however, a clear determination is not possible, the next step needs to be addressed. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, and the agency bears the burden on the last step. Blackette v. Colvin, 52 F.Supp. 3d 101, 110 (D. Mass. 2014). The evaluation process addresses the following questions:

First, is the claimant currently working and is that work a substantially gainful activity? If so, the claimant is considered not disabled. 20 C.F.R. § 404.1520(a)(i).

Second, does the claimant have a severe medically determinable physical or mental impairment that meets the duration requirement under 20 C.F.R. § 404.1509, or a combination of impairments that is severe and meets the duration requirement? If not, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(ii). A "severe impairment" is defined as an impairment "which significantly limits ...

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